Book Review: Radicals in Robes - Page 3

Sunstein's bottom line is that fundamentalism threatens the integrity of the legal system and presents a potential revolution in American constitutional law that is largely unsupported. As a result, he believes the real Radicals in Robes are fundamentalist judges appointed to the bench by the Reagan, Bush I and Bush II administrations. The book ultimately amounts to critiquing that school and bolstering minimalism.

To a great extent, Sunstein's criticism of fundamentalism and advocacy of minimalism is a fair assessment. Should the views of the 18th and 19th century really provide the basis of resolving issues that confront modern society and were wholly unimaginable at the time the Constitution was approved? As Sunstein points out, under such an approach the federal government could discriminate on the basis of race because, by its terms, the Fourteenth Amendment applies only to the states, not the national government. Likewise, 18th century ratifiers certainly did not have any "original intent" that the Constitution afforded women a right to vote.

Aside from those who want to ignore, upset or revolutionize established law and precedent, minimalism makes sense. There is little reason for a court to make wide-ranging pronouncements when a case can be decided on narrow grounds that address only the particular issues presented. Unlike science, law is not an area that should necessary grow by leaps and bounds. Litigants and society are both better served by incremental analysis and application of existing law.

How does all this relate to Miers and whomever replaces her as the nominee? That individual will replace Sandra Day O'Connor, almost universally considered the swing vote on the Supreme Court over the last several years. Sunstein points out that, while a conservative, her decisions indicate she would fall in the minimalist camp. Given Sunstein's belief that minimalism is to be far preferred over fundamentalism or the other theories of constitutional interpretation, he also believes that theory to which any federal judicial nominee adheres is important to the future of the country. Sunstein also wisely points out that while it is easiest to focus on the Supreme Court, all levels of the federal judiciary are called upon to interpret and make law each day.

If there is a failing in Sunstein's work, it is that he may too closely and consistently wed fundamentalists with advocates of the positions urged by the extreme right of the Republican Party—overturning Roe v. Wade and other decisions recognizing a right of privacy, narrowly limiting federal regulators, abolishing affirmative action, invalidating gun control laws, and reducing or removing Establishment Clause restrictions on state governments. While the vast majority of fundamentalists undoubtedly tend toward those views, Sunstein himself may at times cut too broad a swath by viewing fundamentalists and the extreme right as working hand in glove. The possibility certainly exists that not all fundamentalists are wholly within the Constitution in Exile camp or that they agree with the full agenda of the extreme right.

Article Author: Tim Gebhart

Tim Gebhart lives in Sioux Falls, SD, where he practices law in order to provide shelter for his family, his dogs, and his books. He is a member of the National Book Critics Circle and his blog de guerre is A Progressive on the Prairie.

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